IN THE CASE OF:
BOARD DATE: 27 October 2015
DOCKET NUMBER: AR20150003133
THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:
1. Application for correction of military records (with supporting documents provided, if any).
2. Military Personnel Records and advisory opinions (if any).
THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:
1. The applicant requests correction of his record to show he was discharged with a general discharge (GD) vice a bad conduct discharge (BCD).
2. The applicant states he was told his BCD would be upgraded to a GD, but it was never done.
3. The applicant provides no additional documentary evidence.
CONSIDERATION OF EVIDENCE:
1. Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice. This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicants failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicants failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.
2. With prior Reserve Component service, on 22 July 1980, the applicant enlisted in the Regular Army (RA). The highest rank/grade he held was specialist four (SP4)/E-4.
3. On 22 February 1983, the applicant reenlisted in the RA.
4. A DA Form 4430-R (Department of the Army Report of Result of Trial), dated 30 October 1984, from Headquarters, 1st Infantry Division Forward, shows that the applicant received a general court-martial (GCM) and pursuant to his pleas was convicted of wrongful distribution of marijuana (hashish form). The court sentenced him to total forfeiture of all pay and allowances, confinement at hard labor for 6 months, reduction to pay grade E-1 and a BCD.
5. On 26 February 1985, the U.S. Army Court of Military Review affirmed the court-martial's findings and sentence.
6. Accordingly, on 23 August 1985, the applicant was discharged as a result of a court-martial with a BCD. The DD Form 214 he was issued at the time shows he completed 2 years, 1 month and 2 days of creditable active service this period with time lost from 30 October 1985 through 28 March 1985. His DD Form 214 further shows he was on excess leave (creditable for all purposes except pay and allowances) from 29 March 1985 through 23 August 1985.
7. Army Regulation 635-200 (Personnel Separations Enlisted Separations), in effect at the time, set forth the basic policy for the separation of enlisted personnel.
a. Paragraph 11-2 provided that a Soldier would be given a BCD pursuant only to an approved sentence of a general or special court-martial. The appellate review must be completed and the affirmed sentence ordered duly executed.
b. Paragraph 3-7b provided that a general discharge was a separation from the Army under honorable conditions. When authorized, it was issued to a Soldier whose military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge.
8. Court-martial convictions stand as adjudged or modified by appeal through the judicial process. In accordance with Title 10, U.S. Code, section 1552, the authority under which this Board acts, the ABCMR is not empowered to set aside a conviction. Rather, it is only empowered to change the severity of the sentence imposed in the court-martial process and then only if clemency is determined to be appropriate. Clemency is an act of mercy, or instance of leniency, to moderate the severity of the punishment imposed.
DISCUSSION AND CONCLUSIONS:
1. The applicant was given a BCD pursuant to the approved sentence of a GCM.
2. The appellate review was completed and the affirmed sentence ordered executed. Conviction and discharge were effected in accordance with applicable laws and regulations in effect at the time, and the discharge appropriately characterizes the misconduct for which the applicant was convicted.
3. Any redress by this Board of the finality of a court-martial conviction is prohibited by law. The Board is only empowered to change a discharge if clemency is determined to be appropriate to moderate the severity of the sentence imposed. Given the applicant's undistinguished record of service and absent any mitigating factors, the type of discharge directed and the reasons therefore were appropriate. As a result, clemency is not warranted in this case.
4. In view of the foregoing, there is an insufficient evidentiary basis for granting the applicant a GD.
BOARD VOTE:
________ ________ ________ GRANT FULL RELIEF
________ ________ ________ GRANT PARTIAL RELIEF
________ ________ ________ GRANT FORMAL HEARING
___x____ ___x_____ ____x___ DENY APPLICATION
BOARD DETERMINATION/RECOMMENDATION:
The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.
___________x_____________
CHAIRPERSON
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.
ABCMR Record of Proceedings (cont) AR20120012766
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ABCMR Record of Proceedings (cont) AR20150003133
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